Wakeup Itsalie
Jun 18, 2014 6:37 PM"An offeror may not arbitrarily impose contractual liability upon an offeree merely by proclaiming that silence shall be deemed consent.
(M. P. Furmston, Cheshire, Fifoot and Furmston�s Law of Contract, 15th ed. (Oxford: Oxford University Press, 2007) at p. 61)
� ... the silence of the offeree, his failure to reject an offer, cannot amount to acceptance without more. ... Although the offeror can dictate the time, place, and manner of acceptance ... it seems clear that this will not cover the situation where the offeror says that silence will be enough ... Indeed the Supreme Court of Canada has said that something more than a failure to reject an offer is required to constitute a binding contract.
(G.H.L. Fridman, The Law of Contract in Canada, 5th ed. (Toronto: Thomson Carswell, 2006) at p. 54.)
� ... As a general rule, it is not enough for one to whom an offer is made to assent inwardly; the offeree must communicate acceptance to the offeror ...
Ordinarily, therefore silence will not operate as an acceptance even though the offeree should prove an intention to accept. This is not a technicality but part of the requirement of a bargain. No reasonable person, on receiving a proposal that looks for a reply, considers the bargain concluded until the manifestation of assent. Nor will a reasonable offeror ordinarily consider that silence on the part of the offeree manifests the latter�s acceptance. It would plainly be an imposition for an offeror to write to a stranger offering to sell an encyclopedia and adding that the latter�s silence will be considered an acceptance. ...
(S. M. Waddams, The Law of Contracts, 6th ed. (Toronto: Canada Law Book, 2010) at p. 67-68)
� The requirement that there has to be an acceptance cannot be avoided or waived by the offeror�s saying that the offeree will be assumed to have accepted the offer if no rejection is received by the offeror. This rule is a reflection of the very general principal that people are not to have obligations thrust upon them without their consent and that, in general, people have to indicate their consent by some positive action. The principle is expressed in the statement that �silence cannot be consent�.
(Angela Swan, Canadian Contract Law, 2nd ed. (Markham: LexisNexis, 2009) at p. 234.)
[468] This principle continues to be uniformly applied by Canadian courts. For example: Schiller v. Fisher; Nu Towne Dev. Inc. V. Kingsmont Properties Ltd., 1981 CanLII 49 (SCC), [1981] 1 S.C.R. 593 at 598-599, 124 D.L.R. (3d) 577; Pumphrey v. Carson, 2002 NSSC 170 (CanLII), 2002 NSSC 170 at paras. 19-20, 206 N.S.R. (2d) 338; Gellen v. Public Guardian and Trustee of British Columbia et al, 2005 BCSC 1615 (CanLII), 2005 BCSC 1615 at para. 17, 21 E.T.R. (3d) 146; Vollmer v. Jones 2007 CanLII 7999 (ON SC), (2007), 36 R.F.L. (6th) 340 at para. 46, 155 A.C.W.S. (3d) 1079 (Ont. Sup. Ct. J. (Fam. Ct.))."
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